The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs*fn1 in this multi-district action, have brought
a seven-count second amended consolidated putative class action
complaint charging defendants Trans Union, LLC, Acxiom Corp., and
MCI WorldCom Communications, Inc., and MCI WorldCom,
Inc.,*fn2 with various violations of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. (Counts I, II, V
and VI); state law claims for invasion of privacy and
misappropriation (Count III); unjust enrichment (Count IV); and
violation of the California Business and Professional Code §
17200 (the "UCL") (Count VII).*fn3 Plaintiffs have moved for
certification of three classes: (A) a nationwide putative damage
class for defendants' willful violations of the FCRA; (B) an
Illinois class consisting of all Illinois consumers who had their
telephone number or other personal information sold or otherwise
disclosed to a third party in connection with a firm offer of
credit or insurance ("the Illinois Firm Offer Class"); and (C) a
California class for defendants' violations of the UCL through
the sale of target marketing lists. For the reasons set forth
below, the motion is granted in part and denied in part.
Fed.R.Civ.P. 23, which governs class actions, requires a
two-step analysis to determine if class certification is
appropriate. First, plaintiffs must satisfy all four requirements
of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality;
and (4) adequacy of representation. These elements are a
prerequisite to certification, and failure to meet any one of
them precludes certification of a class. Second, the action must
also satisfy one of the conditions of Rule 23(b). Joncek v.
Local 14 International Teamster Health and Welfare Fund, 1999 WL
755051 at *2 (N.D. Ill. 1999) (and cases cited therein).
Plaintiffs argue that all three proposed classes satisfy the
requirements of Rule 23(b)(3), and that the UCL class also meets
the requirements of Rule 23(b)(2).
Trans Union and Acxiom have each raised a number of different
challenges to plaintiffs' motion, most of which focus on the
adequacy of representation requirement of Rule 23(a)(4),*fn5 and the requirements of Rule 23(b)(3), and all of which relate
equally to all three proposed classes. Both defendants have also
raised specific attacks on each of the three proposed classes.
Adequacy of Representation
Rule 23(a)(4) requires that "the representative parties will
fairly and adequately protect the interests of the class." This
requirement has three elements: (1) the chosen class
representative cannot have antagonistic or conflicting claims
with other members of the class; (2) the named representative
must have a sufficient interest in the outcome to ensure vigorous
advocacy; and (3) counsel for the named plaintiff must be
competent, experienced, qualified, and generally able to conduct
the proposed litigation vigorously. Joncek, 1999 WL 755051
Each defendant raises different challenges to plaintiffs'
ability to represent the proposed classes adequately. Acxiom
argues that the individual plaintiffs do not "know and understand
their rights and roles as to class representative." Acxiom points
to a number of depositions of certain named plaintiffs in which
they have indicated that they do not know what claims have been
asserted, what classes have been proposed, and which classes they
represent. This argument generally carries little weight when
assessing adequacy of representation. "[T]he class
representative's role is limited. It was found not to be enough
to defeat class certification in Surowitz v. Hilton Hotels
Corps., 383 U.S. 363, 366 (1966), that the named plaintiff did
not understand her complaint at all, could not explain the
statements in it, had little knowledge of what the lawsuit was
about, did not know the defendants by name, nor even the nature
of the misconduct of the defendants." Eggleston v. Chicago
Journeyman Plumbers' Local Union No. 130, 657 F.2d 890, 896
(7th Cir. 1991). Acxiom argues, however, that when coupled
with the fact that there is what it terms a "questionable
relationship between many of the class attorneys and the named plaintiffs," this lack of knowledge verifies that
"plaintiffs' counsel had manufactured this lawsuit and are
controlling it to a prohibitive degree."
The court disagrees. The fact that plaintiff Turner's son is a
lawyer and informed her of a potential claim does not mean that
she can not be a proper plaintiff. The whole point of the class
action mechanism is that very often potential plaintiffs are
unaware of their claims. Additionally, the fact that plaintiff
Wayne is a class representative in four lawsuits brought by his
counsel does not, by itself, establish that he is an improper
representative. Plaintiff Wayne has sufficient, albeit limited,
knowledge of the case, and defendants have produced no evidence
to suggest that his participation in other suits creates a
conflict for him in the instant action.
Moreover, as noted, under Rule 23(a)(4) the class
representative's knowledge is not generally the proper focus.
Instead, the court should focus on the competency of plaintiffs'
counsel and any conflicts between the named class representatives
and other class members. See Heastie v. County Bank of Greater
Peoria, 125 F.R.D. 669, 676 (N.D. Ill. 1989). There is no
question that the plaintiffs' attorneys are all very experienced
class action litigators who have vigorously pursued this
litigation.*fn6 As to Acxiom's argument that "plaintiffs'
counsel . . . manufactured this lawsuit," Acxiom forgets that the
genesis of this case was the FTC's successful enforcement action,
hardly a matter conjured up by opportunistic lawyers.
Acxiom also argues that representation of the class is
inadequate because some plaintiffs would be subject to
individualized defenses. In particular, Acxiom challenges
plaintiff Gogerty, arguing that she cannot represent the Illinois Firm Offer Class
because she is not currently a resident of Illinois and was an
Illinois resident for less than three of the eight years in
question. Even if Acxiom is correct, there are a number of other
Illinois plaintiffs qualified to represent the Illinois Firm
Offer Class. Thus, denial of class certification on this ground
would be inappropriate.
Trans Union's attack on plaintiffs' ability to represent the
proposed classes adequately takes a somewhat different tack.
Trans Union argues that the named plaintiffs damaged the class by
deciding to pursue only FCRA statutory damage claims for Illinois
residents in connection with firm offers of credit, thereby
waiving all other FCRA claims for other putative class members.
Trans Union argues that plaintiffs allege that it willfully
violated the FCRA by disclosing certain consumer information in
target marketing lists. The Act provides for statutory damages of
not less than $100 and not greater than $1,000 per violation.
15 U.S.C. § 1681n. Yet, according to Trans Union, plaintiffs seek
such statutory damages only on behalf of certain Illinois
residents, and not on behalf of the other 178 million people they
purport to represent. Thus, Trans Union argues that if
plaintiffs' target marketing claims go to trial, Illinois
residents can recover statutory damages of between $100 and
$1,000 per violation plus their share of punitive damages, while
residents of all other jurisdictions will be eligible only for
their share of any punitive award. Additionally, Trans Union
argues that if the class is certified and the case tried,
individuals who reside outside of Illinois would not have a
second chance to seek statutory damages under the FCRA because of
the prohibition against claim splitting.
This argument is faulty on a number of levels. First, contrary
to Trans Union's assertions, plaintiffs do not seek to certify a
class on behalf of all Illinois consumers for statutory damages
as a result of Trans Union's sale of target marketing lists. The
Illinois class seeks statutory damages for consumers whose
telephone numbers or other personal information was sold to third
parties in connection with a firm offer of credit. This is a much
smaller class than that described by Trans Union in its argument,
and Trans Union makes no effort to demonstrate how certification
of that class could prevent claims by consumers from other
jurisdictions whom plaintiffs do not seek to represent.
Moreover, and perhaps more importantly, Trans Union's argument
seeks to put plaintiffs into a "Catch-22" situation. In Trans
Union I, Trans Union argued against certification of a
nationwide statutory damage class because such a class action was
not the superior method for the fair and efficient adjudication
of the controversy. The argument was based in large part on the
enormity of the putative FCRA class approximately 190 million
people. The court agreed with Trans Union, holding that the
potential for damages, which were grossly disproportionate to any
actual harm, made a class action an inferior method to adjudicate
the FCRA claims. Trans Union I, 211 F.R.D. at 351. Having
defeated plaintiffs' efforts to represent all those allegedly
injured nationwide, Trans Union's suggestion that by seeking to
represent a smaller class plaintiffs have now sold out the
"rights of most putative class members" to "advance the interest
of no one other than plaintiffs' ...